Sides Drill for Court
Injunction sought on city fracking ban
Morgantown Dominion Post
11 August 2011
By David Beard
The Parties are preparing for next week’s Monongalia County
Circuit Court hearing on Morgantown’s fracking ban, a plaintiff ’s
spokesman said.
Both sides have submitted arguments to address Circuit Judge Susan
Tucker’s question: “Can a municipality adopt an ordinance that trumps
[Department of Environmental Protection] rules?”
The hearing, tentatively scheduled to run Aug. 17-19, concerns
plaintiffs’ request for a preliminary injunction to prevent enforcement
of the fracking ban pending the court’s ruling on a permanent
injunction.
Attorneys are in the discovery process — gathering information through
written questions, documents and depositions — the spokesman said.
Northeast Natural Energy and the property owner, Enrout Properties LLC,
are suing Morgantown over its ban on fracking within a mile of city
limits. That one-mile circle takes in Northeast’s two state-permitted
wells in the Morgantown Industrial Park.
Both wells were permitted before the city enacted its ban. The permits
were subsequently modified, also before the ban, to include additional
protections the Morgantown Utility Board (MUB) requested.
In the suit, plaintiffs ask the court, among other things, to bar the
city from enforcing its ban; to declare the city law preempted by state
law; and to declare it an unconstitutional violation of due process in
denying them their property rights.
Both sides filed papers on the pre-emption question earlier this month.
The plaintiffs contend in a motion for summary judgment that the
Legislature has given the Department of Environmental Protection full
authority to regulate all oil and gas environmental protection
programs, including exploration, development, production, storage and
recovery.
Because of that authority, plaintiffs said, state code and DEP
regulations pre-empt the city law, which bans horizontal drilling with
fracking near the city.
In a separate affidavit, Northeast’s Michael John said the company
spends $50,000 to $85,000 a day on the operation.
Based on an agreement with MUB, Northeast said it plans to start
fracking its two wells in September.
The city contends in its papers that state home rule code allows
municipalities to make laws to protect public health and safety,
eliminate hazards and abate public nuisances.
“The state regulates oil and gas drilling, but that fact does not
preclude supplemental regulation at the local level,” the city said.
While the state has “primary” responsibility for environmental
protection, “it doesn’t have exclusive responsibility.”
Denying the city’s ability to implement its ban would mean local
governments may not deal with any environmental subjects mentioned in
code, the city said. “That would be a crippling blow to local
communities intent on protecting their quality of life and maintaining
environmental and health standards.”
The city also makes these points to defend its ban:
While plaintiffs say the ban is a zoning and land-use rule and
therefore doesn’t fall under the home rule provisions, the city
counters, “The motion at issue in this case is not a zoning law; it is
a prohibition of noxious use to protect the health and safety of the
community.”
SB 424 — the failed bill the joint Marcellus committee is using as its
framework for new regulation — contains a clause pre-empting any local
laws.
That makes it clear that current law is not pre-emptive.